Under health and safety regulations, employers have to take action to avoid any risks to a pregnant worker that they identify in their risk assessment. For instance, by altering her hours of work or working conditions.
In New Southern Railway Ltd v Quinn, the employment appeal tribunal (EAT) has made clear that the word "avoid" means reduce as far as possible, not eliminate completely.
What were the basic facts?
After working for New Southern Railway for nearly three years, Ms Quinn was appointed on 15 September 2003 to the post of duty station manager at Brighton for a three-month trial period on a salary of £19,500. Her manager told her in mid November that he wanted her to be made permanent.
However, she then went on sick leave from 18 November to 5 December, during which time she found out that she was pregnant. On her return, it was agreed that she should work on permanent middle shifts until the worst of her morning sickness was over, after which a risk assessment would be carried out. This was done on 11 December by Mr Oke, the company's safety strategy manager.
He thought she could continue in the temporary post, but her manager and the company's senior area personnel manager (who had never heard of a pregnancy-related suspension or transfer) thought the risks were too high. She returned to her old job as a PA in January 2004 on a salary of £16,085.
Ms Quinn complained, among other things, that she had suffered a detriment by reason of her pregnancy because of a reduction in her salary, the failure to offer her alternative employment on terms that were no less favourable, contrary to section 67 of the Employment Rights Act and that she had received less favourable treatment by reason of her sex.
What did the tribunal decide?
The tribunal took the view that she had not been suspended from her post as duty manager for health and safety reasons. It said that the decision to demote her to her old job had nothing to do with the risk assessment (which her managers did not understand), and everything to do with their "patronising and paternalistic attitudes" to her.
The tribunal concluded that this was a straightforward case of discrimination on the grounds of sex.
What did the parties argue on appeal?
The company argued that the tribunal had misunderstood the phrase "avoid the risk" in the health and safety regulations, which, it said, meant "get rid of" rather than "reduce."
It said this was an absolute obligation under European law, so that if there was any risk of harm (no matter how small), the employer had to avoid it. In this case, that meant demoting Ms Quinn back into her post of PA.
Ms Quinn, on the other hand, said that the company should have produced evidence that the risks to her safety and that of her unborn child could not be avoided in any other way. For instance by altering her shift pattern or hours of work, as Mr Oke had suggested. If that was not possible, she should have been transferred to suitable alternative work on the same terms, or suspended on full pay.
What did the EAT decide?
The EAT agreed with Ms Quinn. It said the company had not considered whether the risk could be avoided by altering her working conditions or hours. It said this was a fundamental flaw in the company's case because the same risks applied just as much to her post as a PA as to the post of duty manager from which she had been suspended.
It also disagreed with the company as to the meaning of the word "avoid", saying that it "cannot mean eliminate in entirety but means reduced to its lowest acceptable level." It therefore dismissed the company's appeal.